$30K Worth of Multimeters Must Be Destroyed Because They're Yellow 653
An anonymous reader points out a post at the blog of Sparkfun, a hobbyist electronics retailer. They recently received a letter from U.S. Customs saying a shipment of 2,000 multimeters was being barred from entry into the country. The reason? Trademark law. A company named Fluke holds a trademark on multimeters that have a 'contrasting yellow border.' Sparkfun's multimeters are a yellowish orange, but it was enough for Customs to stop the shipment. Returning the shipment is not an option because of import taxes in China, so the multimeters must now be destroyed. At $15 per item, it'll cost Sparkfun $30,000, plus the $150/hr fee for destroying them. Sparkfun had no idea about the trademark, and doesn't mind changing the color, but they say restrictions like these are a flaw in the trademark system. "Small business does not have the resources to stay abreast of all trademarks for all the products they don't carry. If you’re going to put the onus on the little guy to avoid infringing IP then you shouldn't need an army of consultants or attorneys to find this information."
Did Fluke request this? (Score:5, Insightful)
Did Fluke actually request this? Or did Customs do this of their own volition?
If it's the latter, Fluke should step up and allow them to make a one time exception for this shipment. It would generate considerably goodwill for the company and show that they're not bullies keeping the little guy down.
If they DID request this, then fuck them all with a chainsaw, seriously.
Re:Did Fluke request this? (Score:5, Informative)
i don't know, but if you look at the pictures of both the sparkfun literally copied the color scheme
i don't know if they designed it or just sell some chinese copy, but they could at least have changed the colors
Re:Did Fluke request this? (Score:5, Funny)
Re:Did Fluke request this? (Score:5, Insightful)
Re: (Score:3, Insightful)
Re:Did Fluke request this? (Score:5, Insightful)
Not likely. There are many yellow colored multimeters out there. And Radio Shack doesn't rebrand high end equipment, they rebrand low and medium-end equipment. Putting a Radio Shack brand on a Fluke multimeter would degrade it and reduce what they could sell it for.
Paid cross licensing in order to make a yellow multimeter? Has the whole world gone insane, or is Slashdot just over-infested with modern-IT people who think in weird terms like that?
Re:Did Fluke request this? (Score:5, Insightful)
If you do an image search for multimeters there aren't many colors left which don't copy one already in existence.
How many of those other colors are protected by a registered trademark?
If you look at this multimeter, and a Fluke multimeter, side-by-side, it is fairly obvious that it was intentionally designed to look as close as possible to a Fluke. The color, the taper of the case, etc. This was hardly innocent, accidental infringement.
Absolute attempt to copy Fluke's design. (Score:5, Insightful)
Agreed, this is an attempt to copy Fluke's recent multimeter design.
It's not just yellow. It has the same color scheme, same display layout, similar fonts, same case taper as a real Fluke. Brand name in same location as is the model number and description. It was designed to look as much like a Fluke as possible.
If I saw the sparkfun multimeter sitting on a bench in my lab, I would think it was a Fluke until I got close.
Sparkfun knew this when they bought them. Their fault. If they did not know it was designed to imitate a Fluke, they are in the wrong business. "Other companies did it and did not get caught" does not make it right. They risked it anyway and lost. Complaining about the trademark is not the solution.
Re: (Score:3)
If you do an image search for multimeters there aren't many colors left which don't copy one already in existence. I'd suggest Sparkfun try periwinkle.
Or "rainbow", then they'll be fabulous.
Re:Did Fluke request this? (Score:5, Insightful)
Do a search for "Yellow Multimeter" on Google, then go to Google images and scroll down.
There is probable a dozen different brands of multimeters with a yellow contour and grey main face plate. Its probably the most popular color scheme for multimeters.
IMO, that patent should be quashed.
https://www.google.ca/search?q... [google.ca]
Re:Did Fluke request this? (Score:5, Informative)
Actually read the TFA (and the links to the trademark in question) and you can see that:
1. Fluke did not trademark yellow multimeters.
2. The yellow multimeters from a google image search bear no resemblance to the distinct Fluke branding.
From USPTO:
Description of Mark: The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark. Color(s) Claimed: Color is not claimed as a feature of the mark.
If you look at an image of SparkFun's multimeter, there is a striking resemblance. I have had a Fluke for over a decade now, and I love it. I also have an off brand that I got at RS that I kept in the car for roadside repairs, if necessary.
Re: (Score:3)
1. The linked document is not the trademark, it is the USPTO's TSDR entry. You can download the actual trademark "Registration Certificate" by clicking on the "Documents" tab and looking for it. When you pull the the registration certificate, there is no disclaimer of color. That's a USPTO data entry error from their conversion to an electronic records system.
So yes, Fluke
Re:Did Fluke request this? (Score:4, Insightful)
If I look at Fluke's [fluke.com] versus SparkFun's [sparkfun.com], I, as a human, cannot differentiate a difference in the colors. And they both clearly bear an extreme semblance, which is what the trademark is about.
I'm curious, would you be so opposed if Pepsi copied a Coke can, and ever so slightly changed the tint of the red, such that it was "orange" and replaced the text with "Pepsi Cola"?
Re:Did Fluke request this? (Score:5, Insightful)
Mine is yellow, and it's not made by either of the companies mentioned here. The one it replaced was yellow too.
Being easy to find.
Re:Did Fluke request this? (Score:5, Informative)
Says a guy that's apparently never been 10 feet down a very dark and cramped concrete-lined hole, troubleshooting and changing out a failed 480V 3-phase lift-pump motor and contactor assembly.
You really should avoid offering opinions on things whens it's glaringly-obvious that you know very little about them. It's like watching the guy who decides to do a belly-flop from 45 feet. It's just painful for everyone, even the observers.
I'm not being mean here. I'm hoping it sticks and contributes in some small way to you living a happier and more productive life.
"A man's got to know his limitations." - Clint Eastwood as "Dirty" Harry Callahan in "Magnum Force"
Strat
Re:Did Fluke request this? (Score:4, Insightful)
Yellow is not the only choice. Agilent seem to go with orange. But the color IS important. If you are an electrician working at somebody's house, when it is time to go, a bright yellow or orange box is much less likely to be set down and forgotten when it is time to pack up and leave.
Re:Did Fluke request this? (Score:5, Informative)
safety.
Ok. I'll ask. What possible safety function does coloring a multimeter yellow serve? Do you need to see multimeters coming at you so you can defend yourself? Don't pick up a multimeter because it might bite you? "Red touch yellow, friend of fellow..."?
I think Parent means the meter is yellow (bright, easy to see) because it's a safety device. Eg: In industry multimeters are used to verify the lack of voltage before beginning work.
Re:Did Fluke request this? (Score:4, Informative)
Re:Did Fluke request this? (Score:4, Informative)
Not to mention I find it nearly IMPOSSIBLE a company that's getting into the multimeter business
I'm guessing you don't know who Sparkfun is, but they're not in the multimeter business. They're in the hobbyist electronics business, or perhaps even more in the hobbyist electronics education business. If you talk to any of them (I know a couple), they very much view themselves as educators and facilitators of education, focused on making electronic engineering widely accessible and fun. Yes, they sell stuff, but that's because without revenue they can't achieve their main goals.
Re:Did Fluke request this? (Score:5, Informative)
I'll give you a hint - the guy who works for sparkfun in the comments section of his own blog post said:
Yea, it’s hard to say whether Fluke has done such an amazing job at branding that we all think Fluke yellow is the color of DMMs or if they are simply capitalizing on a color arrangement we all generically know as ‘multimeter’.
They knew EXACTLY what they were doing.
Re:Did Fluke request this? (Score:4, Insightful)
"i don't know, but if you look at the pictures of both the sparkfun literally copied the color scheme
"i don't know if they designed it or just sell some chinese copy, but they could at least have changed the colors
Let's face it: a "trademark" on a common electronic gadget being yellow is overly-broad and never should have been issued. It probably happened back in the day when multimeters in the U.S. were made by only a few companies.
Maybe I should go out and trademark traffic signs that are red and white. Or black and white. Think what a business I could have!
Re:Did Fluke request this? (Score:5, Insightful)
Re: (Score:3)
It might be far less nefarious; maybe engineers designing these things are so used to grey-on-yellow that it has become the generic de facto color scheme for multimeters.
My trusty old BK is the same color:
http://www.bkprecision.com/pro... [bkprecision.com]
re: copied color scheme (Score:3)
Maybe so, but I think the argument made in the original article is still valid. If you're going to copyright your color scheme, you better list a *specific* color shade. Simply declaring "yellow" or any other primary color to be "your copyrighted color" is far too broad a statement.
People who pay a premium price for a Fluke meter are usually well aware of what they're paying for. Just because a Chinese knock-off comes out with similar colors doesn't mean people would be fooled into thinking it was equivalen
Re: (Score:3)
Trademark, not copyright. Though often lumped together along with patents under the heading of 'intellectual property' they are actually unrelated areas of law with little in common.
Re: (Score:3)
Re: (Score:3)
This was my reaction as well. I looked at the trademark registration, which has a picture of the Fluke, then at Sparkfun's site. So, fair enough. However, I google image searched 'multimeter' and there are lots of multimeters in that same shade of yellow, of all sorts of brands. I had no idea yellow "meant" Fluke, personally. I think there's a valid case that this trademark has become diluted and generic. Whether all those others are licensed uses or not, if there's no scope for customer confusion of brand,
Re:Did Fluke request this? (Score:5, Informative)
The thing is, allowing trademark violations to go unchallenged for no particular reason at all (in law, being kind is not a reason) will dilute the mark just as if they did nothing, or even worse. So, there is heavy incentive for them not to allow it, and they probably wouldn't.
Re: (Score:3, Informative)
The thing is, allowing trademark violations to go unchallenged for no particular reason at all (in law, being kind is not a reason)
That's why you don't let it go "unchallenged", you license the trademark to them for one time use selling this specific lot of multimeters. I'm sure a real lawyer could come up with the correct language to use here to make everyone happy.
Re: (Score:3)
It's already generic, and was before the trademark.
Re: (Score:3)
Re: (Score:3)
Actually, its a great rule that codified common sense. If your trademark ceases to distinguish your product from your competitors, you lose it. So, for example, if you invent a product called a "Band-aid", you have to ensure there is a generic term for it (like "Adhesive Bandage"), that people use unless they referring to your brand.
There are a lot of examples of companies that lost their brand to a generic term "Zipper", "Thermos", "Escalator", "Videotap
Re:Did Fluke request this? (Score:4, Insightful)
To be fair, the purpose of Trademarks is different from other IP; a large part of allowing trademarks it is to protect the consumer.
Let's say that people buy these look-alikes expecting that they came from Fluke, because Fluke make good products. Instead, they start exploding and burning people's hands off.
My TV has a black screen and a black border, but I don't expect it to be Sony since it says LG on the front.
Unless these meters say "Fluke" or "Fluk3" or "Flukee" or some other confusing variant, I simply don't believe that someone is going to confuse it with a Fluke -- certainly not by anyone that knows enough about multimeters to know that they want a genuine Fluke meter.
Re: (Score:3)
Re:Did Fluke request this? (Score:5, Insightful)
If it's the latter, Fluke should step up and allow them to make a one time exception for this shipment. It would generate considerably goodwill for the company and show that they're not bullies keeping the little guy down.
You are new to this "capitalism" thing, aren't you?
Re:Did Fluke request this? (Score:5, Funny)
You are new to this "capitalism" thing, aren't you?
Why yes, I am. Please, trustworthy sir, can you watch my stuff while I learn the basics?
Re:Did Fluke request this? (Score:4, Funny)
Sure, hold my BitCoins for me..
you can't PASSIVELY. You can ACTIVELY. See NFL gea (Score:3)
Have you noticed all the T shirts and other gear with NFL logos on them? Those are made and sold by other companies with the permission of the NFL.
What a trademark holder is not allowed to do is sit silently, allowing infringement, implying that it's okay while other people build businesses around the mark, then suddenly sue five years later. If you want to allow someone to use your mark in a certain way, you have to explicitly grant permission for a specific use for a specific period of time. That way no
Re: (Score:3)
I think the OC is also new to trademarks. If one wants to maintain a trademark, one cannot allow anyone else to "dilute" it.
Um, if that's true, then why didn't the judge cancel Fluke's trademark on this color scheme? As others have pointed out, most (but not quite all) of the multimeters on the US market use the same or a very similar color scheme. I did a quick check of my basement and garage work areas, found three multimeters with dark bodies and yellow edges, none of them a Fluke. (A 4th in a kitchen drawer has a red edge.) The fact that this color scheme is so widely used should have automatically wiped out Fluke's trad
Re:Did Fluke request this? (Score:5, Insightful)
It seems unlikely that Fluke would have even known about the shipment, much less been in a position to request it. Also, I seriously doubt the company would benefit from much "goodwill" over the ordeal. Their target market is kind of niche, and not exactly prone to making buying decisions based on Facebook polls or whatever. Plus, letting a possibly-inferior product that can be mistaken for their own loose in the wild would mean much more in potential damages to their rep than any "goodwill" gained from the exemption.
Sparkfun does bring up a good point, however. They didn't really do anything "wrong" yet still get hit with a financial loss big enough to sink a lot of businesses. There currently is no system in place for them to have been able to vet the order beforehand for possible trademark violations, aside from retaining lawyers to check out every product they want to order. That may very well be SOP for large companies with deep pockets and lawyers on staff, but it's entirely unlikely that any small business could afford it, much less realize it's something they need to do.
At the end of the day, it's just another roadblock on a road that's already full of them, for anyone looking to start or expand their business.
Re: (Score:3)
Unfortunately for Sparkfun, ignorance of the law is not a valid excuse for breaking it. I work for one of those large companies with deep pockets and lawyers, so I have the good fortune of having been trained somewhat on this stuff. The government takes import and export matters very seriously and considers it the responsibility of the parties involved to conduct due diligence screening to ensure compliance.
Re:Did Fluke request this? (Score:5, Insightful)
Re:Did Fluke request this? (Score:5, Insightful)
Re: (Score:3)
Hard to say, but I imagine it has to do with the price they purchased them for being so low in the first place. The 30k figure Sparkfun has talked about appears to be the value they would have sold them for, not what they paid. I'm guessing they actually paid something closer to $5 per unit, at which point it very well could make more sense to destroy them and buy new ones with different colors.
You have to realize that these are VERY cheap products made in China, so the threshold for viable returns is pro
Re: (Score:3)
If you just offer one-time exceptions whenever anybody whines, they'll have no incentive to not obey trademarks in the future. There is a huge difference between Flukes and cheap $15 multimeters, and it was completely unnecessary for these multimeters to copy Fluke's trademarked color scheme. They aren't exactly some no-name brand. The color scheme of these devices was chosen to mimic that of Fluke's. It's a clear cut case of trademark violation.e
Re:Did Fluke request this? (Score:4, Insightful)
So are they going after Amazon?: http://www.amazon.com/Supco-DM... [amazon.com]
Innovate, but only if you have lawyers (Score:4, Insightful)
I dream of starting a company that can innovate with new products. But I suspect the reality would be a nightmare of lawyers and hassles instead.
Re: (Score:3)
That's your problem. You're dreaming of starting a company, when you should be dreaming of that innovative new product. Once you have that, THEN you start the company.
Re: (Score:3)
I dream of starting a company that can innovate with new products.
Copying someone else's design for a standard piece of test equipment is not "innovating", it's copying. Now, if your yellow, Fluke-shaped multimeters also picked the dirty clothes up off the floor, did the laundry, folded/ironed as appropriate, and provided the parent's-basement dwellers with the correct form of oral sex, THAT would be innovation you could be proud of.
Thugs (Score:3)
The Department of Homeland Security is nothing but a bunch of thugs. Having dealt with them before on customs, this is basically some government employee flexing their muscles because they like the power and have nothing better to do. The appropriate amount of boot-licking and obsequiousness (and tribute payment) is required in order to get it through.
Re: (Score:2, Insightful)
Sadly, this is the kind of thing you usually only see in countries where government officials are corrupt. It is a warning sign of the direction the U.S. government is headed.
Re:Thugs (Score:5, Insightful)
To be fair... (Score:5, Insightful)
Re: (Score:2)
I find it hard to believe that it couldn't be fixed by replacement cases.
Re: (Score:2)
I find it hard to believe that it couldn't be fixed by replacement cases.
If these are $15 each, it would cost more in time (for the retail employee to change the case for each one before it is sold) than the likely profit margin. It is likely cheaper for the manufacturer to destroy them.
Re:To be fair... (Score:5, Funny)
oh come on. it's clearly just a fluke!
Re:To be fair... (Score:5, Insightful)
Sparkfun must have known that those meters look almost exactly like a Fluke (because of the yellow, and a bunch of other reasons).
Sorry, but it is not an example of IP run amok. This is Sparkfun being disingenuous.
Re:To be fair... (Score:5, Insightful)
Re: (Score:2)
So once all the easily distinguishable case colors are taken, nobody else should be able to enter the multimeter business?
Should sparkfun check every product it decides to buy and resell against competitors lines to be sure they don't share a color scheme, lest they infringe a trade mark?
Re:To be fair... (Score:4, Insightful)
The only Fluke I see it looking sorta similar to is this one [circuitspecialists.com]. SparkFun offered to change the color. Also it's a multimeter, how much different can it look so it doesn't look like others. That's kinda like Ford suing every auto manufacturer for making cars with 4 wheels.
Re:To be fair... (Score:5, Insightful)
Yes, it sounds like typical corporate strategy to me "lets just go ahead and break the rules, we'll pay if we get caught, and if not profit!"
Re:To be fair... (Score:5, Insightful)
I wonder what kind of electronics person does not know fluke and the trademark, at least anyone who has a passing relationship to the business.
This is where trademark laws works, and the way it is supposed to work. Fluke has spent 50 years developing good tools for people who need of want good tools. Some upstart like Sparkfun decides to superficially mimic this work, and then claims 'we did not know'.
Here is the thing with small business. You are allowed and encouraged to take risks, you are allowed to try to work under the radar, but sometimes you make a mistake and you have to pay. There are rules, and if you are going to play the game, it is important to know the rules. They can be complex, even arbitrary, which is why kids do not do the real work.
Re: (Score:3)
I know Fluke! I even know their tools generally use dark body, yellowish outline. I was completely unaware that this was actually protected by a trade dress, though. Did you? (Before you read this story, that is.)
What about Voltcraft? Theirs are generally a dark body with a light grey outline (though they - like Fluke - have plenty of variations) Is that protected by a trade dress? No, don't go googling. Tell me, off the top of your head, yes or no?
And if it is.. where would you find that? That appe
Re:To be fair... (Score:4, Interesting)
Re:To be fair... (Score:4, Insightful)
I would have to agree with you on that. The summary refers to the Sparkfun multi-meter as "yellowins-orange" but in the picture it looks strikingly like the yellow that fluke uses. The grey face is pretty darn close to the grey Fluke uses too. I'd like to see a side by side comparison photo.
The curves and proportions are slavishly copied as well. This was meant to confuse no doubt.
Re: (Score:3)
Nobody purchasing a $15 Prada bag confuses it with the real one either -- but it hurts Prada sales and weakens their brand.
Why not take out Trademarks (Score:3)
For blue, red, green, purple, white, black, tan, clear, brown, striped, poka dotted, etc. multimeters, and de-facto own all the rights to create all multimeters?
Lawyers make the rules (Score:2)
So you have to hire them to know what they are.
Infringement (Score:5, Insightful)
I've trademarked black writing on a white background. Please destroy any materials that infringe on my IP
another idea (Score:5, Insightful)
Ok, you can't send em back, and the gov't says they aren't legal here. Why not a third destination?
Damn, donate them already (Score:5, Interesting)
Schools are struggling to find the funds to replace textbooks, let alone put their hands on some good hardware like this, and we can't find some way to donate this hardware instead of destroying it? Who cares if the legal document states that no one over the age of 18 is allowed to posses it, at least let someone get some use out of it.
Talk about stupid.
The multimeter maker is lucky. (Score:2)
lawyer (Score:3)
If they haven't talked to an intellectual property lawyer yet, they should do so immediately. Safety yellow on an electrical testing device is incredibly generic.
I don't entirely disagree (Score:5, Insightful)
Sorry, I like SparkFun and all but this does look a lot like Fluke industrial design. Ok so the colour isn't EXACTLY the same shade of yellow, but if you removed the branding from it and asked somebody what brand it looks like they'll say Fluke assuming they've poked around the market any or are in the industry. Granted it would be cool of Fluke saying something like "OK This ONE time" since SparkFun is all about hobbyists who might eventually become Fluke customers. SparkFun should have thought of this before ordering a container full of them, pleading ignorance that your multimeter is DAMN CLOSE to somebody else's product and not expect trouble is dubious at best. It looks a lot like a Fluke 17b with out the buttons.
Woot! (Score:2)
Destroyed? Hello No...
These will be on Woot in a few weeks, re branded of course.
sporkfun? (Score:3)
I notice that SparkFun Electronics is a registered trademark. I'm sure they'd have no problem with my competing companies, SporkFun electronics and Sp@rkFun Electronics.
In the law, ignorance is not an excuse and hasn't been for centuries if not millennia. You are responsible for what you sell and, yes, for better or worse, colors have been trademarkable for a while now. I know of several examples like T-Mobile's magenta and Reese's orange, and I'm not even a retailer.
I have no doubt that SparkFun would exercise its trademark against infringers, so I have little sympathy for their case even if their violation was unintentional.
small business? (Score:3)
If your small business can't keep track of enough stuff to keep from infringing IP, then buy from suppliers who will indemnify you for IP infringement. Or just buy from reputable retailers.
You decided to get some sketchy Chinese meters from a company skirting the law to try to save some money or raise margins. And now it bit you. It seems like this is how the system is supposed to work.
Baloney (Score:4, Insightful)
Any "hobbyist electronics retailer" attempting to sell a multimeter in the US knows -- or should know -- what a Fluke multimeter looks like, and any businessman or businesswoman knows -- or should know -- that there will be problems trying to sell a product that looks like the product with a dominant share of the market.
Also, you don't need "an army of consultants or attorneys to find this information." Trademarks are freely available from the USPTO web site, in searchable form. Anybody can look them up.
Finally, most business contracts between a manufacturer and a distributor will have an indemnification clause, in which the manufacturer warrants that the product has no intellectual property issues and, should a claim be made against the distributor, the costs associated with such claims will be borne by the manufacturer. If Sparkfun's contract for the Fluke knock-offs didn't have such a clause, I'm sure their standard contract will in the future.
Re: (Score:3)
Any "hobbyist electronics retailer" attempting to sell a multimeter in the US knows -- or should know -- what a Fluke multimeter looks like, and any businessman or businesswoman knows -- or should know -- that there will be problems trying to sell a product that looks like the product with a dominant share of the market.
And how did that stop the multiple brands of meters being sold at Home Depot and Lowes that have an identical look to these. Perhaps safety yellow on an electrical testing device is an industry standard?
Also, you don't need "an army of consultants or attorneys to find this information." Trademarks are freely available from the USPTO web site, in searchable form. Anybody can look them up.
I have seen postings from people who did look it up. The Fluke trademark states that the color is not a part of the trademark.
Hoding a grey and yellow multimeter in my hand (Score:5, Insightful)
Re:Hoding a grey and yellow multimeter in my hand (Score:5, Informative)
Which one?
Kastar: http://www.walmart.com/ip/Kast... [walmart.com]
Steren: http://www.walmart.com/ip/Ster... [walmart.com]
ETEK: http://www.walmart.com/ip/Digi... [walmart.com]
LANG: http://www.walmart.com/ip/A-E-... [walmart.com]
Klein Tools: http://www.walmart.com/ip/Klei... [walmart.com]
TM Atlantic: http://www.walmart.com/ip/TM-A... [walmart.com]
Ideal: http://www.walmart.com/ip/Idea... [walmart.com]
Universal Enterprises: http://www.walmart.com/ip/Univ... [walmart.com]
Morris Products: http://www.walmart.com/ip/Morr... [walmart.com]
or
ROLLS: http://www.walmart.com/ip/ROLL... [walmart.com]
?
Hard to Empathise (Score:3)
It would be a hell of a lot easier to empathize with SparkFun, if they weren't being such whiny little bitches about the whole affair (which, FTR, is their own damn fault - Fluke's been around and using that same design scheme for decades).
Look - you didn't do your due diligence, and got yourself burned for it; suck it up, learn from your mistake, and move on with your lives.
Re:Hard to Empathise (Score:4, Insightful)
From the actuall trademark document (Score:5, Informative)
This is indeed odd. From the actual document of the trademark owned by Fluke it specifically states: Color is not claimed as a feature of the mark. Either there is some other reason the items are being refused entry or Fluke is falsely claiming a trademark infraction, at least if it is because a similar color yellow was used.
Besides, isn't it up to the courts to determine trademark violations, not customs?
Re:From the actuall trademark document (Score:5, Informative)
That is not the "actual document of the trademark owned by Fluke," it is the USPTO's TSDR entry. You can download the actual documents by clicking on the "Documents" tab and downloading them. The actual documents do not disclaim color. In fact, if you look at the "Registration Certificate" for 2,796,480, there is no disclaimer of color.
Fluke is not falsely claiming a trademark infraction. A USPTO contractor has screwed up the electronic summary of the (then-official) paper record. Since the description of the mark specifically states a color scheme, it's pretty clear that there's a some sort of problem. You simply haven't taken the next step of looking at the actual record.
One obtains a customs exclusion order from the US International Trade Commission [wikipedia.org], which functions as a so-called "Article I tribunal." ITC decisions can be appealed to the Federal Circuit Court of Appeals. Any way you slice it, a "court" has found a that there was a trademark violation. Sparkfun could appeal the application of that exclusion order to their meters (a protest under 19 C.F.R. 174), but it doesn't sound like they will.
Customs simply enforces the ITC's exclusion order. You might as well ask whether it's up to the US Marshals to determine whether someone is a fugitive, while ignoring that the police have already obtained a summons and the court has already issued an arrest warrant.
FYI, don't believe the "aww shucks, we're a small business" story. Sparkfun was eager to tout in 2012 that it had "more than 140 employees, revenues of more than $25 million and posted 128 percent revenue growth from 2009 to 2011." While the SBA may define a small business as any enterprise with fewer than 500 employees, that's a pretty substantial business in everyone else's eyes.
Support the customs bureaucrat. (Score:5, Interesting)
But most Americans born here grew up with more honest set of retailers, more honest wholesalers, reasonably effective enforcement, they have not had this cheap imitation knock off problem. The worst you would see is the Walmart brand (Equate?) of nasal spray next to one made by J&J. If you had never gone home and opened a package of Cynthol bar soap and find inside a foul smelling skin abrading cake of caustic alkali with Sinthol stamped on it, you have not been affected by these knock-offs. So all the power to customs agents to spot the cheap knock-offs and take suo moto action to knock the imitations off the planet.
Re:Support the customs bureaucrat. (Score:4)
you're confused, if there is no attempt to deceive, if the item is known not to be similar expensive name-brand, there is no issue with "cheap knock off". I'd rather have a $25 meter that can do 90% of what a $500 one can do because I can't afford to blow $500 on a meter.
That customs agent is a despicable tool of big corporations keeping us enslaved. to hell with him
337-TA-588 as referenced in the letter (Score:4)
http://www.usitc.gov/publicati... [usitc.gov]
"* Certain Digital Multimeters, and Products with Multimeter Functionality
Investigation No. 337-TA-588
(Publication No. 4210; December 2010)"
from http://www.usitc.gov/intellect... [usitc.gov]
(Warning 162 page pdf)
Basically Fluke was a party behind the Trade investigation as to importations of comparable-appearing knockoffs.
I have no horse in this race; I don't use multimeters and couldn't care less who wins (although I tend to be a free-marketeer, generally). Imagegoogling for both, some of them look remarkably similar. I'd say the block was justified. If a bunch got through before the ban was enforced, that doesn't mean the ban was unjust or arbitrary.
Re: (Score:3)
Did you look up other brands like Ideal?
There must be a dozen multimeter brands that use that same color scheme.
Army of attorneys? Please. (Score:3)
Fluke is a good company (Score:3)
I've used Fluke equipment for a very long time, before that Beckman products as well and unfortunately like anything in this arena (meters, test equipment etc.) as soon as they release a product nowadays it gets copied. A lot of the Fluke designs have literally been hijacked to the point that unless you closely look for the Fluke branding, you can't tell the difference until you get into a calibration test and I've seen the cheap imports fall flat in areas where it matters. For the average guy out there tinkering it doesn't matter but in high end manufacturing and testing, it does. It's akin to fake Rolex Watches, designer handbags and the like with feature/functions that have been carefully worked out including tolerances that can mean a product or test passes or fails. Because we're talking about multimeters here, It really is no different an argument than Cellphones manufactured by two different companies where one has patents or trademarks on their designs. These are the mechanisms allowed by law that allow these companies protect their IP but regrettably there are importers that will try and sneak their product in, taking the risk that Customs will confiscate the items. I realize Sparkfun just want to sell to enthusiasts out there but really, they should have checked before trying to importing them.
Re:How can you trademark a color? (Score:5, Insightful)
Ask Apple how you can trademark rounded corners. I'm sure they have lots of insight on this.
Re: (Score:3)
You can TRADEMARK just about anything. Copyrighting and patenting are harder, of course, but that's not what we're talking about here. Shit, you can even trademark a common word (like "Apple," as it applies to computers anyway) .
Re: (Score:2)
never went shopping for interior paint with a woman have you?
evening twinkle, green aurora and the hundreds of other crazy names they make up
Re: (Score:2)
I was told that UPS Brown is trademarked, unsure of the validity of the statement though. This came about when someone had a scratch on their truck and I said just go to the hardware store and buy brown paint, the mechanic pulled out a can of paint and said "you can't its trademarked".
Re: (Score:2)
It's called "trade dress" and it isn't uncommon. Seven Towns claims ownership of its Rubik's Cube color scheme for example. Recently Apple successfully sued Samsung on trade dress grounds for the visual similarity of their products. It's look-and-feel infringement. If the claimant has a powerful enough brand and can show enough similarities, they can easily prevent competitors from diluting their trademark with a trade dress infringement argument.
Re: (Score:2, Insightful)
> You dont think coca-cola would be upset if a product came out called coka-cola in a red and white can?
Except this wasn't anything like that.
Coke Inc. Certainly shouldn't be able to "own" the colors red and white.
Although Coke does have a distinctive enough bottle design to qualify for a genuine trademark. Ironically you overlooked it in your rush to fellate your corporate masters.
Re: (Score:3)
Re: (Score:2)
Yellow Fluke multimeters have been around for a long, long time. I find it very hard to believe they "didn't know Fluke had a trademark"
It's not that they didn't know Fluke had a trademark. It is whether they new Fluke had trademarked the color yellow, which from their own trademark document, they have not. It specifically states: "Color is not claimed as a feature of the mark"
Re: (Score:3)
Anyway, how did all the other yellow meters get through customs??
Because Fluke's trademark specifically states "Color is not claimed as a feature of the mark" As such, it is difficult to see how Customs is turning them away for a trademark violation because of color.